Citation Nr: 0619598
Decision Date: 07/06/06 Archive Date: 07/13/06
DOCKET NO. 00-05 567 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for post-
traumatic stress disorder.
2. Entitlement to service connection for hepatitis C.
3. Entitlement to a total rating on the basis of individual
unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran reportedly had active military service from
November 1972 to August 1974.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from rating decisions of the Department of Veterans
Affairs (VA). In December 1999, the Regional Office (RO) in
Montgomery, Alabama, denied the veteran's claims for service
connection for PTSD and a TDIU. Jurisdiction over the claims
files was subsequently transferred to the RO in Oakland,
California. In a June 2004 decision, the Oakland,
California, RO denied a claim of entitlement to service
connection for hepatitis C.
In a letter, received in September 1998, the veteran raised
the issue of entitlement to an increased rating for his
service-connected residuals of a right arm injury. In a
letter, received in September 1998, the veteran's son raised
the issue of entitlement to an apportionment. These claims
have not been adjudicated by the agency of original
jurisdiction, and are referred to the RO for appropriate
action.
In a statement, received in January 2005, the veteran
requested a videoconference hearing before a Veterans Law
Judge. However, in a statement from the veteran's
representative, dated in February 2006, the representative
stated that the veteran desired to withdraw his request for a
hearing. See 38 C.F.R. § 20.702(e) (2005). Accordingly, the
Board will proceed without further delay.
The issues of entitlement to service connection for hepatitis
C and PTSD and entitlement to a TDIU are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. In an unappealed decision, dated in April 1994, the RO
denied service connection for PTSD.
2. The evidence received since the RO's April 1994 decision
which denied service connection for PTSD, which was not
previously of record, is so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSION OF LAW
New and material evidence has been received since the RO's
April 1994 decision denying the veteran's claim for service
connection for PTSD; the claim for PTSD is reopened. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran asserts that he has PTSD as a result of service.
As an initial matter, there has been a significant change in
the law during the pendency of this appeal with the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000). In this decision, the
Board has reopened the veteran's claim, and directed that
additional development be undertaken. Therefore, any further
discussion of whether VA has complied with the VCAA at this
time would be premature.
In December 1989, the veteran filed a claim for service
connection for PTSD. In July 1990, the RO denied the claim.
There was no appeal, and the RO's July 1990 decision became
final. See 38 U.S.C.A. § 7105(c) (West 2002).
Applicable law provides that a claim which is the subject of
a prior final decision may nevertheless be reopened upon
presentation of new and material evidence. See 38 U.S.C.A. §
5108.
In May 1993, the veteran applied to reopen the PTSD claim.
In April 1994, the RO reopened and denied the claim on the
merits. In September 1998, the veteran again applied to
reopen the PTSD claim. In December 1999, the RO denied the
claim. The veteran has appealed.
The Board initially notes that in the RO's December 1999
decision, it appears that the RO denied the claim on the
merits, without regard to whether new and material evidence
had been submitted. Regardless of the determination reached
by the RO, the Board must find that new and material evidence
has been presented in order to establish its jurisdiction to
review the merits of a previously denied claim. See Barnett
v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996).
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. New and material
evidence means evidence not previously submitted to agency
decisionmakers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
Amendments to 38 C.F.R. § 3.156(a) relating to the definition
of new and material evidence apply to any claim to reopen a
finally decided claim received on or after August 29, 2001.
Therefore, the amendment is not applicable to the veteran's
claim, as he filed his claim prior to August 29, 2001.
Applicable regulations provide that service connection for
PTSD requires medical evidence diagnosing the condition in
accordance with 38 C.F.R. § 4.125(a), a link, established by
medical evidence between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. See 38 C.F.R. § 3.304(f).
The most recent and final denial of this claim was in the
RO's decision dated in April 1994. Therefore, the Board must
determine if new and material evidence has been submitted
since the RO's April 1994 decision. See 38 U.S.C.A. § 5108.
The evidence of record at the time of the RO's April 1994
decision included the veteran's written statement, received
in August 1993, in which he discussed his claimed stressors.
In that letter, he stated that he witnessed the shooting of a
Vietnamese or Thai national by Thai troops while he was
jogging on his base, while stationed in Thailand in June
1973. He also noted his severe injury to his right arm. The
evidence also included the veteran's testimony from an
October 1993 hearing. With regard to PTSD stressors, the
veteran testified that while in Vietnam, he had been jogging
when he came into the line of fire between Army guards who
were shooting at a dog. He testified that he had to lay down
until they were finished shooting. At the hearing, it was
indicated that the inservice right arm injury was not being
claimed as a stressor.
The veteran's service records showed that he served in
Vietnam from May to September of 1973, and that his primary
duties while in Vietnam were "administrative clerk," and
"administrative man." The veteran's service medical
records showed that he was found to be unfit for duty due to
injuries to his right upper extremity after his right arm
went through a window in January 1974, to include multiple
lacerations associated complete neuropathy of the right ulnar
and right radial nerves, and partial anklylosis of the right
wrist and finger joints.
The relevant post-service medical evidence consisted of VA
and non-VA treatment reports, dated between 1975 and 1993.
This evidence showed that the veteran had received treatment
for psychiatric symptoms, with diagnoses that included PTSD,
dysthymia, major depressive disorder, psychoactive substance
abuse, status post heroin and cocaine dependency, and alcohol
dependency.
In the RO's April 1994 decision, it denied the veteran's PTSD
claim, essentially stating that the evidence was insufficient
to show that the veteran had PTSD as a result of service.
The evidence received since the RO's April 1994 decision
includes the veteran's oral and written statements, which
show that he has asserted that he has PTSD as a result of
participation in combat in Vietnam, to include seeing dead
and mutilated bodies, and having four (otherwise
unidentified) friends killed. See June 1998 VA hospital
report; veteran's hearing, held in September 2001; veteran's
stressor statement, received in January 2005. He has also
asserted that he has PTSD as a result of the service-
connected incident in which he cut his right arm. See
veteran's letters, received in June 1999; November 2001 VA
PTSD examination report.
The medical evidence received since the RO's April 1994
decision consists of VA and non-VA medical treatment reports
dated between 1998 and 2005. This evidence includes a number
of reports diagnosing PTSD, mentioned in association with
claimed stressors during service. See e.g., VA hospital
reports, dated in June 1998 and June 2005; VA PTSD
examination reports, dated in December 1999 and November
2001.
The Board finds that new and material evidence has been
received to reopen the claim for service connection for PTSD.
First, as noted above, the veteran has claimed a number of
new stressors. In addition, the submitted evidence includes
competent evidence indicating that the veteran may have PTSD
as a result of his service. This evidence was not of record
at the time of the RO's April 1994 decision, is not
cumulative, and is "new" within the meaning of 38 C.F.R.
§ 3.156. The Board further finds that this evidence is
material. For the purpose of establishing whether new and
material evidence has been submitted, the credibility of the
evidence, although not its weight, is to be presumed. Justus
v. Principi, 3 Vet. App. 510, 513 (1992). The Board
therefore finds that the submitted evidence is so significant
that it must be considered in order to fairly decide the
merits of the claim. See e.g., Hodge v. West, 155 F.3d 1356,
1363 (Fed. Cir. 1998). The claim is therefore reopened.
ORDER
Having submitted new and material evidence, the claim of
entitlement to service connection for PTSD is reopened; the
appeal is granted to this extent only and is subject to the
following development.
REMAND
A letter from the Social Security Administration (SSA), dated
in February 2001, indicates that the SSA has determined that
the veteran was disabled. The veteran has indicated that the
SSA determined that he was disabled due to his service-
connected right arm disability. See veteran's VA Form 9,
received in February 2000. However, the SSA's actual
decision, and the SSA's supporting medical reports, have not
been requested and are not currently contained in the claims
files. On remand, the RO should attempt to obtain the SSA's
records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).
As previously noted, the veteran asserts that he has PTSD as
a result of participation in combat in Vietnam, to include
seeing dead and mutilated bodies, and having four (otherwise
unidentified) friends killed. See June 1998 VA hospital
report; veteran's hearing, held in September 2001; veteran's
stressor statement, received in January 2005. He has claimed
a noncombat stressor involving a September 1973 incident
during which men shot a dog near him. Id. He has also
asserted that he has PTSD as a result of the service-
connected incident in which he cut his right arm. See
veteran's letters, received in June 1999; November 2001 VA
PTSD examination report.
The Board notes that the RO has determined that the veteran
did not participate in combat, and that his claimed stressors
are unverifiable. See April 2004 and September 2005 SSOCs.
However, service connection is currently in effect for
residuals of a laceration of the right forearm with complete
neuropathy of the right ulnar nerve, motor and sensory,
together with complete sensory neuropathy right radial nerve
with flexor muscles at the forearm and partial ankylosis of
the wrist and fingers, currently evaluated as 50 percent
disabling. See June 2004 rating decision. Given the
foregoing, there is at least one verified stressor (i.e., the
veteran's inservice right arm injury). The Board further
notes that the claims files include a number of competing
diagnoses, to include PTSD, depression, bipolar disorder,
substance-induced mood disorder, and heroin abuse, cocaine
abuse, and alcohol abuse. Under the circumstances, the
veteran should be scheduled for a PTSD examination, to
include an etiological opinion.
Accordingly, the case is REMANDED for the following action:
1. The AMC should obtain the Social
Security Administration 's decision, and
the supporting medical records, pertinent
to the appellant's claim for Social
Security disability benefits from the
Social Security Administration.
2. The AMC should schedule the veteran
for a VA examination, by a psychiatrist,
to determine whether he has PTSD under
the criteria as set forth in DSM-IV. The
RO should provide the examiner with a
summary of any verified stressors, to
include his right arm injury, as well as
a determination as to whether he
participated in combat. If the veteran
is found to have PTSD, the examiner
should report whether it is at least as
likely as not (i.e., a likelihood of 50
percent or greater) that the veteran's
PTSD is a result of any verified stressor
as specified by the RO, including his
right arm injury. The rationale for all
opinions expressed must be provided. The
claims files must be made available to
and reviewed by the examiner for review.
3. Thereafter, the RO should
readjudicate the issues on appeal. If
any of the determinations remains
unfavorable to the veteran, he should be
provided with a supplemental statement of
the case (SSOC) that addresses all
relevant actions taken on the claims for
benefits, to include a summary of the
evidence and applicable law and
regulations considered. The veteran
should be given an opportunity to respond
to the SSOC.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs